1. It is important that you completely read and understand the Notice of (I) Pendency of Class Action Certification of Settlement Class and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses; and (IV) Plan of Allocation (the “Notice”), including the Plan of Allocation of the Net Settlement Fund set forth in the Notice. The Notice is available online at www. CytRxSecuritiesSettlement.com or may be mailed to you upon request to the Claims Administrator. The Notice describes the proposed Settlement, how Settlement Class Members are affected by the Settlement, and the manner in which the Net Settlement Fund will be distributed if the Settlement and Plan of Allocation are approved by the Court. The Notice also contains the definitions of many of the defined terms (which are indicated by initial capital letters) used in this Claim Form. By signing and submitting this Claim Form, you will be certifying that you have read and that you understand the Notice, including the terms of the Releases described therein and provided for herein.
2. This Claim Form is directed to all persons or entities that, during the period from September 12, 2014, through July 11, 2016, inclusive, (the “Settlement Class Period”), purchased or acquired common stock of CytRx Corporation (“CytRx Common Stock”) or exchange-traded call options on CytRx Common Stock (“CytRx Call Options”), or sold exchange-traded put options on CytRx Common Stock (“CytRx Put Options”), and were damaged thereby (the “Settlement Class”). CytRx Common Stock, CytRx Call Options, and CytRx Put Options are referred to collectively as “CytRx Securities.” All persons and entities that are members of the Settlement Class are referred to as “Settlement Class Members.”
3. Excluded from the Settlement Class by definition are: CytRx Corporation (“CytRx”), Steven A. Kriegsman, and John Y. Caloz, the Officers and directors of CytRx at all relevant times, members of their Immediate Families and their legal representatives, heirs, successors, or assigns and any entity in which the Defendants have or had a controlling interest. Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a timely and valid request for exclusion that is accepted by the Court.
4. If you are not a Settlement Class Member, do not submit a Claim Form. YOU MAY NOT, DIRECTLY OR INDIRECTLY, PARTICIPATE IN THE SETTLEMENT IF YOU ARE NOT A SETTLEMENT CLASS MEMBER. THUS, IF YOU ARE EXCLUDED FROM THE SETTLEMENT CLASS (AS SET FORTH IN PARAGRAPH 3 ABOVE), ANY CLAIM FORM THAT YOU SUBMIT, OR THAT MAY BE SUBMITTED ON YOUR BEHALF, WILL NOT BE ACCEPTED.
5. If you are a Settlement Class Member and you do not timely request exclusion, you will be bound by the terms of any judgments or orders entered in the Action, including the Releases provided therein, REGARDLESS WHETHER OR NOT YOU SUBMIT A CLAIM FORM.
6. You are eligible to participate in the distribution of the Net Settlement Fund only if you are a member of the Settlement Class and if you complete and return this Claim Form as specified below. If you fail to submit a timely, properly addressed, and completed Claim Form with the required documentation, your claim may be rejected and you may be precluded from receiving any distribution from the Net Settlement Fund.
7. Submission of this Claim Form does not guarantee that you will share in the proceeds of the Settlement. The distribution of the Net Settlement Fund will be governed by the Plan of Allocation set forth in the Notice, if it is approved by the Court, or by such other plan of allocation approved by the Court.
8. Use the Schedules of Transactions in Steps 2-4 of this Claim Form to supply all required details of your transaction(s) (including free transfers) in and holdings of the applicable CytRx Securities.
9. Please note: Only CytRx Common Stock and CytRx Call Options purchased/acquired, and CytRx Put Options sold, during the Settlement Class Period (i.e., from September 12, 2014, through July 11, 2016, inclusive) are eligible under the Settlement. However, under the PSLRA “90 day look-back period” (described in the Plan of Allocation set forth in the Notice), your sales of CytRx Common Stock during the period from July 12, 2016, through and including October 7, 2016, will be used for purposes of calculating your Recognized Loss Amounts under the Plan of Allocation. Therefore, in order for the Claims Administrator to be able to balance your claim, the information concerning your transactions in CytRx Common Stock during the 90-day look-back period must also be provided. Additionally, for any CytRx Call Options in which you had a long position at the close of trading on July 11, 2016 and CytRx Put Options in which you had a short position at the close of trading on July 11, 2016, all of your transactions in those CytRx Call Options and CytRx Put Options will be used for the purposes of calculating your Recognized Loss Amounts under the Plan of Allocation. Therefore, in order for the Claims Administrator to balance your claim, you must also provide the requested information concerning your transactions in those CytRx Call Options and CytRx Put Options.
10. You are required to submit genuine and sufficient documentation for all of your transactions in and holdings of the applicable CytRx Securities set forth in the Schedules of Transactions in Steps 2-4 of this Claim Form
11. CytRx Call Options and CytRx Put Options are identified by strike price and expiration date.
12. Separate Claim Forms should be submitted for each separate legal entity (e.g., a claim from joint owners should not include separate transactions through an account that is in the name of just one of the joint owners, and an individual should not combine his or her IRA transactions with transactions made through an account in the individual’s name). Conversely, a single Claim Form should be submitted on behalf of one legal entity including all transactions made by that entity on one Claim Form, no matter how many separate accounts that entity has (e.g., a corporation with multiple brokerage accounts should include all transactions made in all accounts on one Claim Form).
13. All joint beneficial owners must sign this Claim Form. If you purchased or otherwise acquired CytRx Common Stock or CytRx Call Options, or sold CytRx Put Options, during the Settlement Class Period and held the securities in your name, you are the beneficial owner as well as the record owner and you must sign this Claim Form to participate in the Settlement. If, however, you purchased or otherwise acquired CytRx Common Stock or CytRx Call Options, or sold CytRx Put Options, during the Settlement Class Period and the securities were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial owner of these securities, but the third party is the record owner. The beneficial owner, not the record owner, must sign this Claim Form.
14. Agents, executors, administrators, guardians, and trustees must complete and sign the Claim Form on behalf of persons represented by them, and they must:
(a) expressly state the capacity in which they are acting;
(b) identify the name, account number, Social Security Number (or taxpayer identification number), address and telephone number of the beneficial owner of (or other person or entity on whose behalf they are acting with respect to) the CytRx Securities; and
(c) furnish herewith evidence of their authority to bind to the Claim Form the person or entity on whose behalf they are acting. (Authority to complete and sign a Claim Form cannot be established by stockbrokers demonstrating only that they have discretionary authority to trade stock in another person’s accounts.)
15. By submitting a signed Claim Form, you will be swearing that you:
(a) Own(ed) the CytRx Securities you have listed in the Claim Form; or
(b) Are expressly authorized to act on behalf of the owner thereof.
16. By submitting a signed Claim Form, you will be swearing to the truth of the statements contained therein and the genuineness of the documents attached thereto, subject to penalties of perjury under the laws of the United States of America. The making of false statements, or the submission of forged or fraudulent documentation, will result in the rejection of your claim and may subject you to civil liability or criminal prosecution.
17. If the Court approves the Settlement, payments to eligible Authorized Claimants pursuant to the Plan of Allocation (or such other plan of allocation as the Court approves) will be made after the completion of all claims processing. This could take substantial time. Please be patient.
18. PLEASE NOTE: As set forth in the Plan of Allocation, each Authorized Claimant shall receive his, her or its pro rata share of the Net Settlement Fund. If the prorated payment to any Authorized Claimant, however, calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to that Authorized Claimant.
19. If you have questions concerning the Claim Form, or need copies of the Claim Form or the Notice, you may contact the Claims Administrator, A.B. Data, Ltd., at P.O. Box 173011, Milwaukee, WI, by email at info@CytRxSecuritiesSettlement.com, or by toll-free phone at 800-547-4406, or you may download the documents from the Settlement website, www.CytRxSecuritiesSettlement.com.
20. NOTICE REGARDING ELECTRONIC FILES: Certain claimants with large numbers of transactions may request, or may be requested, to submit information regarding their transactions in electronic files. To obtain the mandatory electronic filing requirements and file layout, you may visit the Settlement website at www.CytRxSecuritiesSettlement.com or you may email the Claims Administrator’s electronic filing department at info@CytRxSecuritiesSettlement.com. Any file not in accordance with the required electronic filing format will be subject to rejection. No electronic files will be considered to have been properly submitted unless the Claims Administrator issues an email to that effect after processing your file with your claim numbers and respective account information. Do not assume that your file has been received or processed until you receive this email. If you do not receive such an email within 30 days of your submission, you should contact the electronic filing department at info@CytRxSecuritiesSettlement.com to inquire about your file and confirm it was received and acceptable.
21. THIS CLAIM FORM MUST BE SUBMITTED EITHER:
(i) ONLINE AT WWW.CYTRXSECURITIESSETTLEMENT.COM NO LATER THAN NOVEMBER 16, 2018; or
(ii) BY MAIL, POSTMARKED OR RECEIVED NO LATER THAN NOVEMBER 16, 2018, ADDRESSED AS FOLLOWS:
In re CytRx Corporation Securities Litigation
c/o A.B. Data, Ltd.
P.O. Box 173011
Milwaukee, WI 53217